Tag Archives: Free Speech

Disclosure and Campaign Finance

Regarding my last post on the ill-fated DISCLOSE Act, commenter Ben Hoffman writes:

How the [expletive] is disclosure “abridging freedom of speech[?]” There’s nothing wrong with knowing who paid for an ad, especially when it contains lies.

Ben raises a good point, if not very tactfully. The answer to his question is that freedom of speech includes the right to make speech anonymously.

Politics is such a combative sport that even donors are viciously attacked by the other side. Think of how Republicans treat George Soros. Now think of how Democrats treat Charles and David Koch. They are punching bags.

This is a deterrent to speech. It has a chilling effect on people who want to have their say, but would prefer not endure those ad hominem attacks. Or in some cases, threats of physical violence. People like Soros and the Kochs have much thicker skin than most people to endure all the ad hominems thrown their way on a daily basis. Think of how many potential donors stay silent because of that. How much speech is left unspoken?

Supporters of California’s wrong-headed Proposition 8 to ban same-sex marriage feared physical retaliation for their political donations when some activists published the names and addresses of donors who supported the measure, along with unsubtle hints that they deserved retaliation. Opponents of same-sex marriage are wrong on the merits of the issue. But they do not deserve to be threatened for being wrong. For them, the right to remain anonymous is a key part of respecting their freedom of speech.

Mandatory disclosure actively harms the right to free speech. It would cause a lot of people to stay silent when they would rather speak. That is wrong.

But that isn’t commenter Ben’s only concern. He worries that anonymity would embolden people to tell lies in political ads. Would it?

After all, under today’s partial disclosure system, both parties already tell plenty of lies in their ads every election cycle. Partisanship trumps truth for Republican and Democrat alike. But that does not mean that therefore, more disclosure is needed.

Ads that contain the real names of donors are taken with added credibility by people. Anonymous ads are taken with a grain of salt. And sometimes for good reason. That means anonymity has a cost. People hold an anonymous message to a higher standard before taking it seriously. Shockingly, voters are smart enough to come to their own conclusions.

According to the law of demand, raising the cost of anonymity means there will be less of it. If an anonymous ad has less impact of an otherwise identical disclosed ad costing the same amount of money, any rational donors will disclose their names unless they place very high values on avoiding Soros-Koch-style attacks. And if they feel that’s a fair tradeoff for reduced credibility, that’s their right.

There are already plenty of regulations for truth in advertising, libel, and the like. Let’s try doing a better job of enforcing those instead of passing more restrictions on the right to free speech.

Bill to Regulate Political Speech Fails

The Hill:”Senate fails to advance campaign finance bill

The First Amendment: “Congress shall pass no law… abridging the freedom of speech.”

Good news for anyone who wants to engage in political speech. But how sad that this happened because of politics, not principle.

It was mostly Democrats who favored the DISCLOSE Act. And according to today’s Senate vote, it was only Democrats who favored the bill. But Republicans are no heroes on this issue. Don’t believe their posturing. If the political winds were currently favoring Democrats, Republicans would be working their tails off to pass similar legislation.

The primary effect of campaign finance regulation is to stack the rules of the game in favor of incumbents. Both parties know this. And both parties will seek to use campaign finance regulation to their advantage however they can.

A Telling Headline

From The Hill: Vulnerable Democrats defend support for campaign finance legislation

Campaign finance regulations are an incumbent’s best friend. The incumbent already has name recognition, and a deep network of fundraising contacts. Heck, Congress’ franking privilege allows incumbents to send out de facto campaign messages for free. Challengers have none of those advantages.

It takes a lot of money to buy enough ads to get a challenger’s name recognition anywhere near the incumbent’s. Campaign finance regulations make it harder to raise that money, and harder to put up a fight against established officeholders. No wonder so many incumbents from both parties favor strict campaign finance regulations! It’s good for their job security.

Regulation of the Day 134: Not Voting

The lede to this Denver Post article says it all:

RIDGWAY — Residents of this Old West- meets-New Age town can be fined if their fences are too high, they have too many chickens, their dogs aren’t on leashes or their weeds are out of control.

Tom Hennessy would like to add not voting to that list.

There are three things wrong with Mr. Hennessy’s proposed regulation. One is that mandatory voting is a violation of personal freedom. To vote or not is an important choice that people make for themselves. It is not Mr. Hennessy’s place to make that decision for others. Many countries have tried mandatory voting over the years, most notably the Soviet Union.

The second thing wrong with mandatory voting is that it violates freedom of speech. Mr. Hennessy is aware that compelled speech is just as unconstitutional as censored speech. That’s why he proposes a “none of the above” option on ballots. But some people are sending a deliberate message when they choose not to vote. Mr. Hennessy would fine them for sending that message.

The third point is that, maybe, some people shouldn’t vote. If I step into a voting booth not knowing a thing about the candidates or the issues, I am essentially choosing at random. And choosing wrong means voting against everything I stand for.

Even worse, human beings have built-in cognitive biases that affect their voting habits. Economist Bryan Caplan’s book The Myth of the Rational Voter identifies anti-foreign bias, anti-market bias, make-work bias, and pessimistic bias, for starters.

Even relatively informed voters fall prey to these biases. They vote accordingly. The difference of opinion between economists and the general public on economic issues is startling. Nobody argues relativity with a physicist thinking they’ll win. But voters from both parties argue against the laws of economics every election, often in error but never in doubt.

Despite its flaws, democracy has worked tolerably well in this country for a long time. Perhaps the best part of our particular democracy is that people are free to choose their level of engagement with it. That should be your choice. Not Tom Hennessy’s.

(Full disclosure: CEI takes no stance on whether to vote, or for whom. Neither do I. I personally have not voted since 2002, but seriously consider it every year.)

On the Radio – Campaign Finance

In about 20 minutes, I’ll be appearing on Paul Molloy’s radio show to talk about campaign finance regulation and free speech. Give a listen if you’re in the Tampa, FL or Little Rock, AR area.

You can also tune in by clicking here.

A Good Day for Freedom of Speech

“If the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

Justice Anthony Kennedy, introducing today’s Citizens United decision.

Precisely. The correct way to rebut unwelcome speech is not to silence it. It is to counter it with more speech. Let the best arguments win. Advocating speech restrictions is a fancy way of saying, “my arguments are too weak to withstand criticism.” Get better arguments, then!

Free speech issues aside, there is a reason why McCain-Feingold is informally known as the Incumbent Protection Act. It stacks the deck against challengers. No wonder so many incumbent politicians from both parties have come out against today’s decision. It’s bad for their job security.

Regulation of the Day 100: Posting YouTube Videos

The Italian government is considering making it illegal for its citizens to post videos on the Internet without a license.

The free speech implications are obvious. But could the proposal also be a move to restrict unwanted economic competition against Italy’s state-dominated media?

Regulation of the Day 49: Political Speech

The First Amendment famously reads, “Congress shall pass no law… abridging the freedom of speech, or of the press.”

Congress, ever sneaky, has looked very closely at the First Amendment’s wording. If they can’t pass laws abridging the freedom of speech or of the press, maybe they can pass laws abridging the freedom of speech and of the press.

I kid, of course. No lawyer in their right mind would use that argument in court. The real justifications for most speech and press-abridging laws — collectively known as campaign finance regulations — are actually much flimsier.

They mainly have to do with protecting politicians from criticism. For example, a group called Citizens United released a partisan documentary last year called Hillary: The Movie. Basically a feature-length missive against then-Sen. Hillary Clinton and her presidential candidacy, the FEC blocked the movie from pay-per-view television during the 2008 primary season.

The movie was effectively censored because corporations (and unions) are not allowed to engage in certain types of political speech when an election is near. Citizens United lists some corporations among its donors, and thus was not allowed to show the movie as widely as they would have liked.

Citizens United got upset about all this, naturally. So they sued. Their case made it to the Supreme Court last year. Unwilling to make too hasty a decision, the Court re-heard oral arguments yesterday. The early bets are that Citizens United will win a partial victory, though one never knows until the decision is actually handed down.

Had the movie not been about politics, it would have faced no such obstacles. Political speech is treated very differently from other types of speech these days. This is a troubling trend. At heart, campaign finance regulations are a roundabout way of saying: no criticizing candidates!

Perhaps the First Amendment is a bit wordy. “Congress shall pass no law” is quite enough.